Tom Geoghegan, labor lawyer, writer, and (hopefully) the progressive who will win Rahm's old seat (IL-5), argues that the current form of the Senate filibuster is unconstitutional, and that it can and must be changed:
[T]he Senate, as it now operates, really has become unconstitutional: as we saw during the recent health care debacle, a 60-vote majority is required to overcome a filibuster and pass any contested bill. The founders, though, were dead set against supermajorities as a general rule, and the ever-present filibuster threat has made the Senate a more extreme check on the popular will than they ever intended.
The change in the filibuster came about as a result of a procedural rule in 1973 that effectively ended the filibuster of "Mr. Smith Goes to Washington"-type legend. What it put in place is something quite different:
As revised in 1975, Senate Rule 22 seemed to be an improvement: it required 60 senators, not 67, to stop floor debate. But there also came a significant change in de facto Senate practice: to maintain a filibuster, senators no longer had to keep talking. Nowadays, they don’t even have to start; they just say they will, and that’s enough. Senators need not be on the floor at all. They can be at home watching Jimmy Stewart on cable. Senate Rule 22 now exists to cut off what are ghost filibusters, disembodied debates.
The previous filibuster rules at least could be defended as protecting the right of speech, but the current rules do something quite different:
As a result, the supermajority vote no longer deserves any protection under Article I, Section 5 — if it ever did at all. It is instead a revision of Article I itself: not used to cut off debate, but to decide in effect whether to enact a law. The filibuster votes, which once occurred perhaps seven or eight times a whole Congressional session, now happen more than 100 times a term.
This, Geoghegan points out, is unconstitutional, for three reasons:
First, the Constitution explicitly requires supermajorities only in a few special cases: ratifying treaties and constitutional amendments, overriding presidential vetoes, expelling members and for impeachments.... In the Federalist Papers, every time Alexander Hamilton or John Jay defends a particular supermajority rule, he does so at length and with an obvious sense of guilt over his departure from majority rule.
Second, Article I, Section 3, expressly says that the vice president as the presiding officer of the Senate should cast the deciding vote when senators are "equally divided." The procedural filibuster does an end run around this constitutional requirement, which presumed that on the truly contested bills there would be ties. With supermajority voting, the Senate is never "equally divided" on the big, contested issues of our day, so that it is a rogue senator, and not the vice president, who casts the deciding vote.
The procedural filibuster effectively disenfranchises the vice president, eliminating as it does one of the office’s only two constitutional functions.
Yet the founders very consciously intended for the vice president, as part of the checks and balances system, to play this tie-breaking role....
Third, a majority and explicitly not a supermajority is specified for a quorum. It would be completely illogical to rule out a supermajority for a quorum but then allow it "on an ad hoc and more convenient basis any time a minority wanted to block a vote." Yet that's the situation Senate Rule 22 allows.
It won't be easy to get senators to give up what has become a means for institutional and personal aggrandizement, but there are things that can be done, Geoghegan says:
If the House passed a resolution condemning the use of the procedural filibuster, it might begin to strip the supermajority of its spurious legitimacy....
The president of the Senate, the vice president himself, could issue an opinion from the chair that the filibuster is unconstitutional....
We citizens could also demand that our parties stop financially supporting senators who are committed to the filibuster, and we ourselves could deprive them of fund-raising dollars....
That last point is really where it starts, as always, with us.
UPDATE: Thanks to all for the interesting discussion in comments, both agreement and disagreement. More blogospheric discussion of Geoghegan's argument can be found here. There seems to be fairly consistent agreement that he's made a good case but that the obstacles to change will be pretty much insurmountable...not that that's any reason to ever give up trying.